United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO
H. CLELAND UNITED STATES DISTRICT JUDGE
Nabila Amine has filed this action for damages under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 1346(b)(1). Plaintiff alleges that she slipped and
fell on an icy, snow-covered walk while entering a post
office in Novi, Michigan, and brings claims of negligence and
premises liability against Defendants the United States of
America and the United States Postal Service for her
injuries. (Dkt. # 1) Before the court is Defendants'
motion to dismiss the complaint for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). (Dkt. # 4.)
The motion is fully briefed and a hearing is unnecessary.
See E.D. Mich. L.R. 7.1(f)(2). For the reasons that
follow, the court will grant Defendants' motion.
Rule of Civil Procedure 12(b)(6) provides for dismissal for
failure to state a claim upon which relief may be granted.
Under the Rule, the court construes the complaint in the
light most favorable to the plaintiff and accepts all
well-pleaded factual allegations as true. League of
United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527
(6th Cir. 2007). This standard requires more than bare
assertions of legal conclusions. Bovee v. Coopers &
Lybrand C.P.A., 272 F.3d 356, 361 (6th Cir. 2001).
“[A] formulaic recitation of the elements of a cause of
action will not do.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Any claim for relief
must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Erickson v. Pardus, 551 U.S. 89, 93 (2007).
“Specific facts are not necessary; the statement need
only ‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests'”
Id. (quoting Twombly, 550 U.S. at 555).
to survive a motion to dismiss, a complaint must provide
sufficient facts to “state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. “The plausibility standard is not akin to a
“probability requirement, ' but it asks for more
than a sheer possibility that defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550
U.S. at 555.) Additionally, on a motion to dismiss, a court
is usually limited to the complaint and attached exhibits,
but it may also consider “public records, items
appearing in the record of the case, and exhibits attached to
the defendant's motion to dismiss so long as they are
referred to in the complaint and are central to the claims
contained therein.” Erie County v. Morton
Salt, Inc., 702 F.3d 860, 863 (6th Cir. 2012)
(quoting Bassett v. Nat'l Coll. Athletic
Ass'n., 528 F.3d 426, 430 (6th Cir. 2008)).
immunity bars lawsuits against the United States absent its
consent to be sued. See United States v. Sherwood,
312 U.S. 584, 586 (1941). Through the FTCA, Congress has
consented to lawsuits based on federal employees' torts.
Ellison v. United States, 531 F.3d 359, 361 (6th
Cir. 2008). In suits under the FTCA, federal courts determine
the liability of the United States according to the
substantive law of the states where the event giving rise to
the alleged liability occurred. See 28 U.S.C. §
1346(b)(1); Young v. United States, 71 F.3d 1238,
1242 (6th Cir. 1995). The parties agree that Michigan's
substantive law applies here.
to her complaint, taken as true for the purposes of this
order, Plaintiff was lawfully on the premises of the Novi
Post Office in Novi, Michigan on February 25, 2014. (Dkt. #
1.) There was a “large accumulation of snow which
covered ice in front of the main entrance way” to the
post office, hiding the ice from Plaintiff's view.
(Id. at Pg. ID 2.) Plaintiff, needing to mail an
application to renew her daughter-in-law's green card,
attempted to enter the post office despite the obstacle. She
slipped on the ice and suffered significant, lasting
claims both ordinary negligence and premises liability.
“Michigan law distinguishes between claims arising from
ordinary negligence and claims premised on a condition of the
land.” Buhalis v. Trinity Continuing Care
Servs., 822 N.W.2d 254, 258 (Mich. Ct. App. 2012)
(citing James v. Alberts, 626 N.W.2d 158 (Mich.
2001)). Because Plaintiff's injury “arose from an
allegedly dangerous condition on the land”-ice under a
pile of snow on the walkway-“the action sounds in
premises liability rather than ordinary negligence[.]”
Id. (finding plaintiff's claim that she slipped
on ice in defendant's parking lot to sound in premises
liability, not ordinary negligence) (citing James,
626 N.W.2d at 158). That Plaintiff alleges Defendants created
the dangerous condition makes no difference. See Id.
(“[T]his is true even when the plaintiff alleges that
the premises possessor created the condition giving rise to
the plaintiff's injury.”).
Michigan law, “a premises possessor owes a duty to use
reasonable care to protect invitees from an unreasonable risk
of harm caused by dangerous conditions on the premises,
including snow and ice conditions.” Hoffner v.
Lanctoe, 821 N.W.2d 88, 91 (Mich. 2012). “Michigan
law provides liability for a breach of this duty of ordinary
care when the premises possessor knows or should know of a
dangerous condition on the premises of which the invitee is
unaware and fails to fix the defect, guard against the
defect, or warn the invitee of the defect.”
Id. at 94 (citing Bertrand v. Alan Ford,
Inc., 537 N.W.2d 185, 185 (Mich. 1995)). With respect to
ice and snow cases, “a premises owner has a duty to
exercise reasonable care to diminish the hazards of ice and
snow accumulation, requiring that ‘reasonable measures
be taken within a reasonable time after an accumulation of
ice and snow to diminish the hazard of injury to the
invitee.'” Id. at 96 (quoting
Quinlivan v. Great Atlatnic & Pacific Tea Co., Inc.,
235 N.W.2d 732, 740 (Mich. 1975).
argue that Plaintiff's complaint fails to state a claim
because, taken as true, Plaintiff's allegations describe
an open and obvious danger. “[L]iability does not arise
for open and obvious dangers unless special aspects
of a condition make even an open and obvious risk
unreasonably dangerous.” Id. at 91
(emphasis in original). This is because “such dangers,
by their nature, apprise an invitee of the potential hazard,
which the invitee may then take reasonable measures to
avoid.” Id. at 94 (citations omitted). Whether
a danger is open and obvious “depends on whether it is
reasonable to expect that an average person with ordinary
intelligence would have discovered it upon casual
inspection.” Id. at 95 (citing, among others,
Joyce v. Rubin, 612 N.W.2d 360, 364 (Mich. Ct. App.
2002); Lugo v. Ameritech Corp., Inc., 629 N.W.2d
384, 387-88 (Mich. 2001)). “Michigan courts thus ask
whether the individual circumstances, including the
surrounding conditions, render a snow or ice condition open
and obvious such that a reasonably prudent person would
foresee the danger.” Id. at 96-97 (“no
dispute” that “readily apparent patch of
ice” on sidewalk in front of defendant's fitness
center was open and obvious) (citations omitted).
quote Ververis v. Hartfield Lanes, 718 N.W.2d 382,
386 (Mich. Ct. App. 2006) (on remand) (per curiam), stating,
“[A]s a matter of law . . ., by its very nature, a
snow-covered surface presents an open and obvious danger
because of the high probability that it may be
slippery.” (Dkt. # 4, Pg. ID 27.) In the Sixth Circuit,
federal courts “accept the holding of a state
intermediate appellate court with respect to state law unless
[the court] determines that the highest court of the state
would decide otherwise.” Bennett v. MIS Corp,
607 F.3d 1076, 1095 (6th Cir. 2010) (quoting United
States v. Philp, 460 F.3d 729, 732 (6th Cir. 2006)).
Thus, unless this court determines that the Michigan Supreme
Court would overturn Ververis, the snow-covered ice
that Plaintiff slipped on was an open and obvious danger as a
matter of law.
does not argue that the Michigan Supreme Court would decide
otherwise. Rather, Plaintiff attempts to distinguish
Ververis in two ways: “First,
Ververis involves the natural accumulation of snow
on top of ice. . . . Our case involves man-made snow mounds
placed on top of ice directly in front of the only doorway
and they are knee high.” (Dkt. # 6, Pg. ID 50.)
“Second, the Plaintiff in Ververis actually
saw the ice. It was impossible for Plaintiff in our case to
have notice of the ice due to the fact the man-made snow
mounds were covering the ice.” (Id.) The court